Grows v. Maine Central Railroad , 1877 Me. LEXIS 15 ( 1877 )

Appleton, C. J.

This case comes before us upon a demurrer to the plaintiff’s declaration. There are, then, no facts in dispute. The facts being admitted, it becomes the duty of the court to apply the law to the facts. It was held by the supreme court oí Pennsylvania, in Hoag v. Lake Shore & Michigan Southern R. R. Co., 1 Reporter, 89, that, where facts are admitted or established without conflict, the court may declare, as a matter of law, whether such facts do or do not amount to negligence.

The plaintiff being in a narrow fenced lane leading to the crossing over the defendants’ railroad, and distant about two and half rods from its track, and perceiving the defendants’ train forty rods from but approaching the crossing, he being distant seven rods from the same attempted to cross the track before the train should reach it. His attempt "was unsuccessful and he was injured. Hence this suit.

It is negligence to attempt crossing the track of a railroad without looking to see if the cars are approaching. If the traveler does not look and his omission contributes to his injury, he is guilty-of such negligence as will bar his recovery, notwithstanding the negligence of those in charge in omitting to sound the whistle or ring the bell. Gorton v. Erie Railway, 45 N. Y. 660. Allyn v. Boston & Albany Railroad, 105 Mass. 77. Wheelock v. Boston & Albany Railroad, 105 Mass. 203. Butterfield v. Western Railroad, 10 Allen, 532. But it is greater negligence for one seeing the cars approaching at ordinary speed to make the attempt. The plaintiff was protected by the fences. He had nothing to do' but to rein in his horse. He saw the danger and hastened to incur it. The excuse given for the foolhardy attempt made, is that the lane was so narrow that he could not turn. But the fact that he could not turn was no excuse for driving on. He should have stopped where he was till the cars had passed. “The right of a man to risk his own life, and that of his horse,” observes Paxson, J'., in Philadelphia, W. & B. Railroad v. Stinger, 78 Pa. St. 219, 220, “may be conceded; but not the right, by an act of negligence, if not of recklessness, to place in peril the lives of hundreds of others who may happen to be traveling in a train of cars.”

■ He assumed the risk of an attempt which put in peril the lives of passengers, as well as his own life. His own rash act contributed to the injury, and in such case a party cannot recover. The facts being undisputed the question of contributory negligence is one of law. Morrison v. Erie Railway, 56 N. Y. 302. Nichols v. Great Western Railway, 27 Canada, Q. B. 382.

It is not enoúgh to show negligence on the part of the defendants, if the plaintiff’s negligence contributed to the injury he cannot recover. But here it is difficult to perceive wherein the negligence of the defendants is shown.

The alleged negligences of the defendants are, (1) that no warning was given of the approach of the train. But it is not pretended that the crossing was one where the statute requires a bell to be rung. And if it was, the omission to ring did not contribute to the injury, inasmuch as the plaintiff saw the approaching train. Vision was better than hearing. (2. ) It is stated as a matter of complaint that the defendants were running at unusual speed. Trains must make connections. They are not limited to any rate of speed. The court cannot say as matter of law that running with more or less than the average or usual speed is negligence. McKonkey v. Corning &c. Railroad, 40 Iowa, 205. The hypothesis of the plaintiff’s writ, is that hastening and slacking speed is of itself negligence.

The plaintiff does not allege in his writ that the servants of the defendants saw him in sufficient season to have avoided the collision ; and if they did not, they were not required to slacken speed without any apparently existing cause therefor.

The remarks of Hagarty, J., in Nichols v. Great W. Railway, 27 Canada, 382, 395, in a case almost precisely like the one under consideration, are peculiarly applicable. “I can see,” he says, “'nothing mo ving towards this unfortunate accident, . . except an utter disregard on the part of the cab driver of that common prudence and care which should govern every person about to cross a well known railway crossing, known to be unfenced and to be constantly traversed by trains. If parties so acting can recover, it must be .solely on the ground that the defendants are a railway company; and to hold such parties entitled to damage, notwithstanding this disregard of their own safety, is to encourage carelessness and endanger human life, not only on the part of those crossing the track, but also on the part of the passengers on the trains.” Declaration bad.

Demurrer sustained.

Walton, Daneorth,' and Peters, JJ., concurred. Yirgin, J., concurred in the result.